Q. Are there any updates related to New Jersey’s Temporary Workers’ Bill of Rights?

A. Yes. As previously reported, in February, New Jersey Governor Phil Murphy signed into law the Temporary Workers’ Bill of Rights (the Bill of Rights), which established several new labor and employment protections for New Jersey’s 125,000+ temporary workers. On July 21, the New Jersey Department of Labor and Workforce Development Division of Wage and Hour Compliance published a set of proposed regulations implementing the Bill of Rights. While there is a 60-day comment period before the regulations become final, the state has represented that, at this time, it intends to enforce the Bill of Rights in accordance with the proposed regulations.

The Bill of Rights requires temporary service firms (more commonly known as a staffing firm or a temp agency) to pay temporary workers the same rate of pay and equivalent benefits as a permanent employee of the third-party client, who is performing the same or substantially similar work to that of the temporary worker. The law only applies to those who are placed in a temporary assignment by a staffing firm to perform work in occupations as designated by the U.S. Bureau of Labor Statistics. Examples of those jobs, include: food preparation and serving; production, such as laundry and dry cleaning, food processing, textile and wood workers; construction; transportation and moving, such as drivers, parking attendants, and material moving; personal care and service, such as amusement, entertainment, and dressing room attendants; building and grounds cleaning and maintenance, such as janitors, cleaners, and landscaping workers; protective service, such as security guards and crossing guards; and installation, maintenance, and repair.

Scope of the Law

The proposed regulations clarify that the law applies to staffing firms that are located, operate, or transact business within New Jersey. The regulations state that the law applies to each temporary worker for such a firm that either: (1) has been assigned to work within New Jersey, or (2) has been assigned by the firm to work outside of New Jersey, “but who has his or her primary residence in New Jersey.”

Benefits

The regulations define “benefits” as employee fringe benefits, including but not limited to, health insurance, life insurance, disability insurance, paid time off (including vacation, holidays, personal leave, and sick leave in excess of what is required by law) training, and pension. The term “benefits” does not include employee fringe benefits that an employer is required by law to provide to its employees (e.g., earned sick leave under N.J.S.A. 34:11D-1 et seq.).

Placement Fees

A staffing firm may charge a placement fee to a third-party client should it choose to hire a temporary worker as an employee. According to the regulations, a placement fee “shall not exceed the equivalent of the total daily commission rate that the [staffing firm] would have received over a 60-day period, reduced by the equivalent of the daily commission rate that the [staffing firm] would have received for each day the temporary [worker] would have performed work for the [staffing firm] in the preceding 12 months.” The regulations provide a step-by-step calculation to determine the placement fee allowed to be charged by a staffing firm for a temporary worker being directly hired by an employer.

Hourly Rate Calculations and Substantially Similar Work

The regulations state that third-party clients must provide staffing firms with a “listing of the hourly rate of pay and cost per hour of benefits for each employee of the third-party client who the third-party client determines would be a comparator employee.” This must be disclosed at the time the third-party client contracts with the staffing firm for placement of the temporary worker. The regulations provide a step-by-step calculation to determine the rate of pay for a temporary worker, where the third-party client has determined that it has comparator employees performing similar functions with similar skills and experience as the temporary worker.

The regulations set forth a list of principles to consider when determining whether a temporary worker and third-party employee are performing “substantially similar work” for the hourly wage analysis. Those principles include the following:

• Substantially similar work should be viewed as a composite of skill, effort, and responsibility performed under similar working conditions.
• Functions and duties need not be identical in order to be substantially similar.
• Occasional, trivial, or minor differences in duties that only consume a minimal amount of the employee’s time will not render the work dissimilar.
• Job titles and job descriptions are relevant, but not dispositive of whether two individuals are performing substantially similar work.
• The determination should focus on an analysis of the actual job duties performed, not the specific person performing the work.
• The analysis should be applied to a full work cycle, not just a snapshot of a particular time period or day.
• Skill is measured by factors such as the experience, ability, education, and training required to perform a job.
• Effort is the amount of physical or mental exertion needed to perform a job.
• Responsibility is the degree of accountability and discretion required to perform a job.
• The number of years of service (i.e., seniority) of a particular employee is not relevant to the determination of whether two jobs are substantially similar, even where the third-party client’s employee compensation system is seniority-based; but rather, what is relevant is the number of years of experience that are required to perform a job.
• The third-party client’s use of a merit system for the compensation of its employees is not relevant to the determination of whether two jobs are substantially similar.
• Working conditions, for the purpose of determining whether two jobs are being performed under similar working conditions, means the physical surroundings and hazards, but does not include job shifts.

Wage Statements

Whenever wages are paid to a temporary worker, the staffing firm must provide the worker with a detailed itemized wage statement. The regulations explain that the wage statement must include:

• The name, address, and telephone number of each third-party client at which the temporary worker worked during that pay period;
• The number of hours worked by the temporary worker at each third-party client on each day during that pay period;
• The total pay period earnings, and the hourly rate, including any premium rate or bonus;
• The total amount of each deduction made from the temporary worker’s wages including the purpose of the deduction;
• The current maximum amount of a placement fee that may be charged to the third-party client should it wish to directly hire the temporary worker;
• The total amount charged by the staffing firm to the third-party client for the services of the temporary worker during that pay period; and
• Total cost to the staffing firm of benefits provided to the temporary worker during that pay period.

Takeaways

Until the rules and regulations are finalized, best practice dictates that affected companies make good-faith efforts to comply with all aspects of the new law. Affected staffing firms and employers should consult with counsel to ensure that their recordkeeping, payroll, and other human resources systems comply with the new Bill of Rights requirements.